Gilles v La Rosa (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gilles v La Rosa (No 2) [2018] NSWCA 297

Hearing dates:

4 December 2018

Decision date:

04 December 2018

Before:

Basten JA; Macfarlan JA

Decision:

(1)   Dismiss the summons seeking leave to appeal from the costs order made in the Equity Division.

 

(2)   Order that the applicant pay the respondents’ costs fixed in the sum of $15,000.

 (3)   Otherwise dismiss the respondents’ motion filed 14 September 2018.

Catchwords:

APPEAL – costs – application for leave to appeal – costs order in proceedings otherwise disposed of by consent – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 21, 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v NSW Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Re Minister for Immigration & Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Category:

Procedural and other rulings

Parties:

Joseph John Gilles (First Applicant)
Gregory George Eliades (Second Applicant)
Rosa La Rosa as Executor of the Estate of the late Giovanni La Rosa (First Respondent)
Rosa La Rosa (Second Respondent)

Representation:

Counsel:
L T Fermanis (Applicants)
M Castle / A D Bailey (Respondents)

  Solicitors:
Giles Payne & Co (Applicants)
S Moran & Co (Respondents)

File Number(s):

2018/184527

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2018] NSWSC 920

Date of Decision:

21 June 2018

Before:

Emmett AJA

File Number(s):

2015/366603

Judgment

1. THE COURT: The applicants seek leave to appeal from a lump sum costs order made by Emmett AJA on 21 June 2018 following the dismissal of the applicants’ summons: Gilles v La Rosa [2018] NSWSC 920.

2. The applicants are solicitors who conduct their legal practice under the name Giles Payne & Co. It will be convenient to refer to the applicants as the Firm, as was done by Emmett AJA in the court below. The second respondent, Ms Rosa La Rosa, and her late husband, Mr Giovanni La Rosa (the Clients) had retained the Firm to act first in relation to a conveyancing transaction, in respect of which the first costs agreement was entered into. Mrs La Rosa, as executor of the estate of her late husband, is the first respondent and is the second respondent in her personal capacity.

3. The Clients also retained the Firm in respect of proceedings in the Federal Circuit Court in which a loan relating to the conveyance was raised as an issue in Family Court proceedings between their son, Mr Salvatore La Rosa, and his former wife. The Clients entered into a second costs agreement in respect of those services. Each costs agreement contained a clause in the following terms:

“We shall have the right of security for our costs and disbursements for…